Opinion
No. CV-10-2179-PHX-SMM
09-07-2011
LimoStars, Inc., an Arizona corporation, Plaintiff, v. New Jersey Car and Limo, Inc., a New Jersey corporation, Defendant.
ORDER
Before the Court are Plaintiff's Motion and Application for Entry of Default Judgment, (Docs. 18, 23) and Plaintiff's Application for Attorneys' Fees and Non-Taxable Costs (Doc. 27). Defendant New Jersey Car and Limo received statutory service of process through the New Jersey Department of the Treasury and had actual notice of this action. (Doc. 17, 19, 25, 29). On February 8, 2011, Default was entered after Plaintiff failed to file an answer or other responsive pleading. (Doc. 20). Because Plaintiff's Complaint requested non-liquidated damages and injunctive relief, Magistrate Judge Lawrence O. Anderson held a default damages hearing on June 16, 2011. On August 8, 2011, Judge Anderson issued his Report and Recommendation, Findings of Fact, and Conclusions of Law.(Doc. 47). He recommends that default judgment be entered in favor of Plaintiff against Defendant in the amount of $82,380.77. Defendants have not filed any objections to Judge Anderson's Report and Recommendation. The Court will adopt Judge Anderson's recommendation and enter judgment accordingly.
STANDARD OF REVIEW
When reviewing a Magistrate Judge's Report and Recommendation, this Court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Failure to object to a Magistrate Judge's recommendation relieves the Court of conducting de novo review of the Magistrate Judge's factual findings; the Court then may decide the dispositive motion on the applicable law. Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (citing Campbell v. United States Dist. Court, 501 F.2d 196 (9th Cir. 1974)).
By failing to object to a Report and Recommendation, a party waives its right to challenge the Magistrate Judge's factual findings, but not necessarily the Magistrate Judge's legal conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (failure to object to a Magistrate Judge's legal conclusion "is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal"); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980)).
DISCUSSION
Having reviewed the legal conclusions of the Report and Recommendation of the Magistrate Judge, and no objections having been made by Defendants thereto, the Court hereby incorporates and adopts the Magistrate Judge's Report and Recommendation.
CONCLUSION
For the reasons set forth,
IT IS ORDERED that the Court adopts the Report and Recommendation of Magistrate Judge Lawrence O. Anderson. (Doc. 47).
IT IS FURTHER ORDERED that Plaintiff's Application for Entry of Default Judgment (Docs. 18, 23) against Defendant New Jersey Car and Limo, Inc. is GRANTED.
IT IS FURTHER ORDERED Plaintiff's Motion for Award of Attorneys' Fees and Costs (Docs. 27) is GRANTED.
IT IS FURTHER ORDERED Defendant New Jersey Car and Limo, Inc. is permanently enjoined from (1) operating www.nylimostars.com; (2) infringing or unfairly competing against Plaintiff by utilizing any derivation of the federally registered trademark "LIMOSTARS" in any promotion, advertisement, or any other commercial activity, including, but without limitation, the use of www.nylimostars.com; www.nylimostars.us., www.nylimostars.co; and www.nylimostars.info; and (3) refusing to transfer to Plaintiff LimoStars Inc, Inc., the use of www.nylimostars.com.
IT IS FURTHER ORDERED that this Judgment is binding on Defendant New Jersey Car and Limo, Inc., their officers, agents, servants, employees, and attorneys, and any person acting in concert or participating with anyone having actual notice of this Judgment;
IT IS FURTHER ORDERED that Judgment is entered in favor of Plaintiff LimoStars, Inc., and against Defendant New Jersey Car and Limo, Inc., in the amount of $82,380.77 ($45,407.07 + $36,973.70 for attorney's fees) plus Plaintiff's taxable costs and non-taxable expenses allowed by Rule 54(d)(1), LRCiv 54.1, and 28 U.S.C. § 1920. See, Grove, 606 F.3d at 579-582; In re Apollo Group, Inc. Securities Litigation, 2009 WL 2169178 (D.Ariz., July 17, 2009). The Judgment shall earn interest at the annual federal rate from the date of entry of this Judgment until paid in full.
Stephen M. McNamee
United States District Judge